Graham Butler, PhD Fellow at the Centre for Comparative and European Constitutional Studies, Faculty of Law, University of Copenhagen, Denmark

Introduction

This summer, the Court of Justice (the Court) issued two significant decisions influencing the Common Foreign and Security Policy (CFSP) legal landscape. Despite the Treaty of Lisbon’s integration of this largely intergovernmental area (previously the Second Pillar) into the unified ‘EU’, its legacy persists. Enduring evidence of CFSP as a distinct yet incorporated legal domain allows it to be termed ‘CFSP law’. Court judgments arising from interinstitutional and direct action litigation contribute to its development. The two judgments, Tanzania (Case C-263/14) and H v. Council (Case C-455/14 P), address distinct issues, with a third, Rosneft (Case C-72/15), delivered later in the year. This series of judgments highlights the dynamic nature of CFSP. This analysis will concentrate on the H v. Council judgment, particularly the Court of Justice’s jurisdiction in CFSP matters, given its unique circumstances.

Background

A cursory reading of the Treaties might suggest three articles potentially challenge the Court of Justice’s jurisdiction concerning CFSP.

Article 24(1) TEU states, ‘…The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’

Article 40 TEU states, ‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’

Article 275 TFEU states, ‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’

Therefore, it might appear that the Court lacks jurisdiction in CFSP matters outlined in Articles 21-46 TEU (‘Title V’). However, the rules’ complexity and the stipulated exceptions are open to varying interpretations, often leading to cases before the Court, like the one at hand.

Pleadings

H v. Council (Case C-455/14 P) was an appeal against a General Court Order regarding jurisdiction in a staff dispute involving an official serving in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH). Initially, the General Court issued an Order on 10 July 2014 (Case T-271/10, H v. Council, ECLI:EU:T:2014:702) stating it lacked jurisdiction due to the matter concerning CFSP, thereby broadly interpreting the Treaties’ provisions on jurisdictional limitations, Articles 24(1) TEU and 275 TFEU. H appealed this Order to the Court, arguing the staffing issue within CFSP was an administrative act and not a bar to the Court’s jurisdiction, even though EUPM was established based on CFSP law. The case provided the Court with another opportunity to clarify its jurisdiction within the sensitive CFSP domain.

Before the General Court, both the Council and the Commission claimed the matter pertained to CFSP and, citing the second paragraph of Article 24(1) and the first paragraph of Article 275 TFEU, asserted the General Court lacked jurisdiction. The General Court concurred. H disagreed, presenting two pleas on appeal. The Court of Justice addressed only the second plea – the EU judiciary’s jurisdiction in CFSP matters. Its findings on this jurisdictional ground rendered examination of the first plea unnecessary.

Judgment in H v. Council

Following Advocate-General Wahl’s Opinion in April 2016, the Court of Justice delivered its judgment in July 2016. While the Advocate-General supported the General Court’s finding of no jurisdiction, the Court adopted a different stance. Convening in Grand Chamber, the Court acknowledged that, generally, its jurisdiction does not extend to the CFSP provisions of the Treaties (Title V, Articles 21-46 TEU). However, the Court also stated that this general exclusion cannot encompass all aspects of CFSP. Thus, acts based on CFSP law may fall within the Court’s jurisdiction. In this case, this applied despite EUPM’s foundation on a CFSP legal basis through Article 28 TEU and Article 43(2) TEU. The question, therefore, was whether administrative decisions concerning the EUPM’s daily operations on the ground should preclude the Court’s jurisdiction.

Decision 2000/906/CFSP outlines, among other things, EUPM staffing arrangements. The Decision makes it clear that all EUPM staff on the ground are subject to the Civilian Operation Commander’s rules and authority, a logical arrangement considering the operational and logistical challenges of senior officials lacking central control over staff. However, a closer look reveals distinct legal positions: some staff are seconded from national public bodies, while others are seconded from various EU institutions, agencies, and bodies. Despite this, the Decision facilitates the coordination of daily operations for ‘all’ staff. This is the instrument the Court utilizes to establish its jurisdiction in this case. As staff management is inherent to all EU public bodies, the Court observed that the CFSP Decision on EUPM staffing mirrors those exercised in EU institutions (paragraph 54). Consequently, the Court determined that the limitations imposed on its jurisdiction by Article 24(1) TEU and Article 275 TFEU cannot prevent it from reviewing staff management within EUPM, even though it operates under a CFSP legal framework.

The Court of Justice provided further justification for its interpretation. It cited a decision concerning the European Defence Agency’s (EDA) statute, seat, and operational rules. Council Decision 2015/1835/CFSP on the EDA grants the Court jurisdiction over matters involving seconded national experts. Regarding judicial review, the Court stated that ‘…the very existence of effective judicial review [is] designed to ensure compliance with provisions of EU Law…’ (paragraph 41). This is not the first time the Court has invoked ‘rule of law’ considerations to justify permitting judicial review. Moreover, the Court highlighted that the case concerned redeployment, not secondment itself, a distinction the General Court had overlooked. Ultimately, the ‘no jurisdiction of the Court’ articles concerning CFSP in the Treaties do not exclude every aspect of a CFSP mission from the Court’s purview. Therefore, the Court concluded that the General Court erred in broadly interpreting its principally excluded position.

Analysis

The Court’s judgment in H v. Council appears well-founded. Interpreting all matters related to CFSP missions, including administrative, procedural, and operational issues, as ‘CFSP acts’ to circumvent oversight by the EU’s judicial body would overextend the Treaty’s limitations on the Court. Consequently, the definition of a ‘CFSP act’ has narrowed, as the Court narrowly construed both the concept and the limitations imposed on the restrictive judicial review mechanisms. The Treaties differentiate between foreign policy acts and implementing acts. Article 40 TEU states, ‘The implementation of…[CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences…’. Despite being implementing acts of foreign policy, it would be inaccurate to categorize all decisions within CFSP as ‘CFSP acts’ and thereby exclude judicial review.

Notwithstanding the operational environment of missions like EUPM, the Council’s argument that an operational issue concerning security and defense should fall outside EU judicial oversight is weak. The Council inadvertently undermined its own argument through its EDA Decision last year. Perhaps unaware of the full implications of Council Decision 2015/1835/CFSP, it is now experiencing its ripple effects. The Council contradicted its own position by granting the Court jurisdiction within a CFSP Decision on the EDA in 2015, yet claiming it lacks the same adjudicatory powers within an earlier CFSP Decision on the EUPM. This unsustainable argument likely became apparent to the Council when the Court raised the matter during oral hearings.

Conclusion

H v. Council is another instance of the Court of Justice breaking new ground in CFSP. A measure concluded on a CFSP legal basis does not automatically exclude the Court. The Court can leverage secondary Union law, such as a CFSP Decision, to expand the jurisdictional boundaries imposed on the former Second Pillar. The Mauritius (Case C-658/11) and Tanzania (Case C-263/14) cases showcased the Court’s firm stance on institutional procedures. Notably, the Court has once again broadened its jurisdiction within CFSP without invoking Article 40 TEU, its ‘border policing’ provision between CFSP and non-CFSP. As a result, the General Court’s order declining jurisdiction has been overturned. Article 61 of the Statute of the Court permits referring cases back to the General Court, which becomes bound by the legal points established by the Court. Hence, the case has been returned to the General Court to adjudicate on the substance, with its jurisdiction now confirmed.

The upcoming Rosneft judgment (Case C-72/15, Rosneft Oil Company OJSC v. Her Majesty’s Treasury and Others), a preliminary reference concerning, inter alia, the Court’s jurisdiction in CFSP, will be closely observed when the Court decides on it later this year. (See the discussion of the opinion in that case here). As time progresses, the two distinct legal regimes governing EU external action, CFSP and non-CFSP, will persist unless ‘splitting’, where EU measures are decided upon a dual legal basis, becomes more common. Until these EU constitutional law issues are resolved, the Court will continue to face intricate questions regarding its jurisdiction in CFSP.

Barnard & Peers: chapter 10, chapter 24

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